Forecast for July 6, 2020. - First Branch Forecast

Welcome back. This week will be busy in the House, so let’s go!

THE TOP LINE

The House Appropriations subcommittees are holding mark-ups all week, plus a Thursday vote on the 302(b) allocations and full committee markups on Thursday and Friday. The full schedule is at the bottom of this email.

• One notable change: for the first time, members of the media can obtain offered amendments by email; previously, you had to be there to get copies.

• We’ll be closely tracking the 302(b) allocations and Leg Branch, FSGG, and CJS markups; and for Leg Branch, we have a spreadsheet of 25 years of spending by line item, adjusted for inflation, which we expect to publish with the proposed spending numbers at firstbranchforecast.com.

• We’re starting to forget, but the bill text should be up 24-hours in advance of each markup (per House rule XI, clause 2(g)(4)) and any adopted amendments should be online no later than 24-hours after the meeting (Rule XI, clause 2(g)(6)). Subcommittee reports are expected online within 24-hours. Approps committee rules require roll call votes online within 48-hours. Keep an eye on the full approps committee page, the relevant subcommittee page, and docs.house.gov. Don’t forget our handy bot @AppropsTracker.

Proxy voting and virtual committee actions were extended by Speaker Pelosi through August 18. Will the House’s calendar now change with another COVID bill coming?

Intern Diversity. Pay Our Interns released an excellent report on House intern diversity: “Color of Congress.” We have a summary below.

POWER OF THE PURSE

Will OMB answer GAOs questions? House Dem power players Yarmuth, Lowey, and Maloney are pressing OMB and other agencies to respond to GAO inquiries by tomorrow regarding the administration’s decision to withhold funds from WHO. Acting OMB Director Vought told Congress just last month that he would work closely with GAO. (A Senate Vought confirmation floor vote is set for July 20.)

• This is the latest instance of executive agencies under the Trump administration refusing to comply with GAO spending oversight — a break from past Democratic and Republican administrations. This behavior was the subject of Budget and Appropriations hearings earlier this year — including this GAO testimony — and helped prompt the introduction of the Congressional Power of the Purse Act.

Breaking precedent, again. OMB chose not to release a full economic projection in its mid-session review to Congress, despite a legal requirement to do so. Instead, OMB sent a “short rundown of recent legislations’ effects on receipts and expenditures.” House Budget Chair Yarmuth wrote that the incomplete mid-session review is a “Dereliction of Duty” and says the lack of full disclosure makes it more difficult for Congress to help Americans.

Border wall funding heading to SCOTUS? The 9th U.S. Circuit Court of Appeals held the administration violated the Appropriations Clause of the Constitution, which gives Congress exclusive funding powers, when it transferred funding directed for other purposes.

Power of the Purse Coalition. The power of the purse rightly lies with Congress; we joined a new coalition to strengthen it.

CONGRESSIONAL OPS

Masks. Rep. Clyburn, chair of the Coronavirus select committee, says he will no longer recognize members who won’t wear masks. Meanwhile, Majority Leader McConnell is encouraging all Americans to wear masks. Despite the pleas from party leadership, some GOP Members continue to defy the mask-wearing protocol.

House gym? According to a statement against proxy voting in the Congressional Record, Rep. Ferguson noted “we can even now go to the House gym again.” We hear the House gym is open by appointment only, the Senate gym never closed, and Members are still sleeping in their offices. Can this be true? Yuck.

Rooney off GOP Steering. Retiring Republican Rep. Francis Rooney, who has been supportive of proxy voting in the House, was removed from the GOP Steering Committee. We don’t know why; the proceedings are secret. Two weeks ago, Rooney attempted to cast a proxy vote through Dem. Rep. Beyer, but then backed out.

De-Taney’d. The House will vote later this month to remove a bust of Roger Taney from the Capitol, according to House Majority Leader Hoyer. Taney, a former Supreme Court Justice, was a segregationist who wrote the Dred Scott decision in 1857. In addition, Speaker Pelosi suggested legislation is forthcoming to remove statues of “people who have committed treason against the United States,” namely Davis and Stephens, BGOV reported. Still no word from Maj. Leader McConnell, who is blocking efforts to remove the statues from public view in the Senate.

Filibuster. There’s talk, again, of what Dems would do w/r/t the filibuster should they retake the Senate. We think, as does former Sen. Reid, that the filibuster’s elimination is just a matter of time, although Sen. Manchin is against it. We can see an obvious next step of limiting its applicability in the context of DC statehood.

PAY OUR INTERNS

Intern racial disparities. The congressional workplace is racially segregated, and the racial identity of a House Member affects the racial makeup of the staff that oversee interns and interns they hire, according to a new report from Pay Our Interns and Rutgers Assistant Professor Dr. James Jones: “Color of Congress.” Regardless of political party, offices of White Members were three times more likely to have White interns and White intern coordinators than offices of non-White Members. The majority of interns of color work for a Tri-Caucus Member. Latinx are vastly underrepresented, comprising only 5 percent of all congressional interns despite making up 20 percent of the national undergraduate student population.

Congressional internships are often prerequisites to full time staff positions and low or unpaid internships are a barrier for opportunity, diversity, and representation. Unequal access to internships perpetuates a system that favors the affluent to fill future staffer positions, some of whom become Members later in their career. The reliance on interns and lack of investment in a diverse talent pipeline is, in part, a consequence of the systemic budget cuts to the Leg. Branch over the past quarter century.

To help address this disparity, Congress must increase its Leg. Branch Appropriations funding for paid internships, including for personal, committee, and leadership offices. The POI report only examined internships in personal offices, which are eligible in the House to receive $25,000 a year per office. Committee internships are not funded out of a central fund, and the House last year first appropriated $365,000 for leadership office interns. Senate personal offices are eligible for an average of $60,000 per office. While POI founder Carlos Mark Vera and others have been working assiduously to increase intern funding, there is still much work to be done.

Congress must change outreach and hiring practices to better reflect their communities. While increasing internship funding is important, data from the POI report makes clear that current office hiring practices favor interns of similar backgrounds as their Member. Congressional offices must offer a more transparent intern hiring process and expand recruiting efforts to include more applicants from diverse backgrounds and underrepresented communities. This is true for more than internships, but they are a gateway to employment.

Senior staff? A 2018 Joint Center for Political and Economic Studies study highlighted the lack of diversity amongst top congressional staff in personal offices based on data from Legistorm. Data also show the vast majority of staffers in leadership positions are male. This is also the case at the committee-level, where data show men hold more top positions and make more money than women who hold the same position. GW Assistant Professor Casey Burgat has an excellent analysis of diversity in Senate offices.

More data and transparency is needed. In light of these findings, both chambers must look to administer regular studies of demographic and pay information for staff and interns, and publish the reports as data. There is no institution-wide reporting on internships, including information on who interns, how much money they receive, and where they are located. A lack of high quality, official baseline data makes it difficult to track whether opportunities are being provided equitably. (As an aside, we are tweeting all new announced jobs on Capitol Hill, including support offices and agencies.)

• We submitted testimony to the House and Senate in 2018 asking for a staff pay, retention, and diversity study: the House agreed; Senate approps agreed, but Sen. McConnell removed the Senate’s language on diversity. We also supported efforts to create a separate fund for internships and the creation of a House and Senate diversity/HR offices. And we called for pay levels set no lower than the local minimum wage. The most recent House Pay Study was published as a PDF, so we translated it into data and organized the findings.

Credit where it’s due. We note and applaud efforts over the last few years to address these problems by authorizers and appropriators, especially those on House and Senate Leg Branch Approps, the House Admin Committee, and the House Rules Committee. The House and Senate now have a central source of funding to pay for interns in personal offices and House leadership offices and they increased funding levels last year. The House did conduct and the Senate is conducting a pay study. The House created an Office of Diversity and Inclusion. The Select Committee on the Modernization of Congress endorsed creating a central HR hub, making the Diversity and Inclusion Office permanent, and regularly surveying staff. We are at the starting point of a long journey to improve Congress’s strength, and a key component is its current and future staff.

NDAA

Loading the bases. President Trump, in a racist tweet using offensive language, vowed to veto the NDAA if the bill includes Sen. Warren’s amendment to establish a commission to implement a names removal plan of the military bases honoring Confederate generals within three years. The amendment has bipartisan support, and Senate Majority Leader McConnell says he’s “OK” renaming confederate bases and urged Trump to reconsider his veto.

• One year. Meanwhile, HASC approved (33-23) a stronger bipartisan provision from Reps. Brown and Bacon that would lead to renaming the confederate named bases within one year. The committee adopted the complete defense measure by a vote of 56-0. Roll Call’s Mark Satter also had a light-hearted write up of Wednesday’s markup. See committee activity here.

NDAA floor votes. The House NDAA, which was favorably reported by the committee last week, will go to the floor after the holiday recess, but we don’t know when. Unlike most bills, there can be a lot of floor votes on the NDAA — and the composition of the chamber at large is very different from the Armed Services Committee — so it will be interesting to watch.

CIVIC TECH

PACER launched its website redesign that includes features to help users navigate its database of federal court orders. The site update includes a mobile-friendly design, easier access to free judicial opinions, fee exemption guidance, and more. This update is its first in a decade. Despite the revisions, PACER continues to charge exorbitant fees for users to access court orders that should be free. PACER brings in $146 million a year in fees while the site costs roughly $5 to $10 million to operate. FWIW, if you use PACER, you should install RECAP, a free online tool from the Free Law Project that crowdsources access to federal court docs.

Historical Law Library Reports. We’re a bit late to this, but the Law Library of Congress announced in March that it is digitizing its historical foreign law reports in conjunction with GPO, and has digitized 600 new reports so far at the rate of ~250 per quarter. The total volume could run in the thousands. Kudos to the Law Library for improving public access to smart legal analyses, and for doing so proactively!

More from the Law Library. The Law Library is just starting its efforts to digitize the U.S. Serial Set — i.e., all the committee reports/documents going back to the early 19th century. The digitization project, in collaboration with GPO, is expected to take at least 5 years, and there’s no timeline by when the documents might go online. Efforts to digitize the Statutes at Large is further along; scanning is done, and they are at the phase of adding metadata. These are good projects and we are impatient for them to be completed. 🙂 While we wait, 5 years ago we published all the Statutes at Large in a format you can look up by citation from 1789-present at uslaw.link.

For more on this and other cool Law Library projects watch their briefing: digital collections at the law library.

Machine-readability matters. The Data Foundation and Workiva released a report on the importance of machine-readability and recommends that policymakers and executive agency leaders require the practice when possible; clearly communicate data standards and their intent in legislative and regulatory actions; and encourage the adoption of open data standards.

Bridging Tech Help and Congressional Staff. Code for America and Georgetown’s Beeck Center held a seminar on Modernizing Congress, featuring staff from Rep. Moulton’s office.

The UK’s Parliamentary Digital Service, yes, they have a digital service for Parliament, has its new legislative drafting tool up and running.

Judge naught, but the Free Law Project has completed adding all current federal magistrate and bankruptcy judges to its API.

OVERSIGHT

Impeaching Barr. Rep. Steve Cohen and 35 co-sponsors introduced a resolution to direct House Judiciary to “determine whether the House of Representatives should impeach” the Attorney General. Speaker Pelosi and Judiciary Chair Nadler are opposed; this is reminiscent of the Speaker’s opposition to impeaching Pres. Trump, where she resisted calls to start an inquiry until September 24 — pushed into it by a caucus majority that supported it — and then pulled the proceedings from Judiciary, narrowed its scope, and rushed it through. We note, as CRS does, that impeachment proceedings could be brought up on the floor as a question of privilege, forcing members to vote on how to dispose of such an inquiry.

Intelligence. Congress is an intel oversight pushover, and the House Intel Committee — filled with security hawks — has a reputation of bipartisanship, largely because leadership usually won’t appoint people who dig in too much and HPSCI rules disempower those members who want to dig in.

• GOP HPSCI boycott. Republicans Members have abdicated their intel oversight role by boycotting HPSCI proceedings on a spurious basis: that non-classified proceedings might verge on mentioning classified info. We’ve dinged Schiff before on inappropriately closing open proceedings, and worry that the unclassified roundtables are just another way of keeping the public out, but Rs should still show up for work.

• Hide the ball. CIA Director Haspel and DNI Ratcliffe briefed the top congressional lawmakers known as the ‘Gang of Eight’ about intelligence allegations regarding Russians paying bounties to the Taliban to target U.S. military troops. As CRS notes, the construct of the Gang of Eight is often about the appearance of oversight without the actuality. It’s troubling that they are not briefing HPSCI, or every member of Congress for that matter, since Members have a constitutional duty to know what’s going on, especially if they’re going to vote on matters like the NDAA and the Intel Authorization Act.

• If Intel does get to work, we can expect them to push the Intel Authorization Act. Last year’s bill expanded the “Intelligence Identities Protection Act,” a controversial measure that, according to the Reporters Committee for Freedom of the Press, allows intel agencies to “to indefinitely criminalize the disclosure of the identities of undercover intelligence officers and agents…. even when that information is newsworthy, in the public interest, and where disclosure would not pose a risk of harm to the officer or agent.”

Inherent Contempt? A resolution introduced by Rep. Lieu would establish an inherent contempt enforcement process whereby the House could directly sanction executive branch officials and others who defy congressional subpoenas with heavy personal fines ranging up to $100,000. Congress is currently struggling with ways to deal with executive branch obstruction and noncompliance — including access to witnesses around the pandemic response, resistance of the Treasury disclosing PPP loan recipients, and refusals of Defense Sec. Esper and Chairman of the Joint Chiefs Milley to testify. As DOJ won’t pursue statutory contempt, the House may have to rely on its inherent powers.

Sen. Duckworth is blocking military promotions “until Defense Secretary Mark T. Esper assures her in writing that impeachment witness Lt. Col. Alex Vindman will not be punished for his testimony” before the House, Roll Call reported.

The Taxpayers Rights to Know Act was introduced last week, which calls for a list of the programs on which the federal government spends money.

Rep. James Comer will now serve as ranking member of House Oversight, which has suffered high turnover in its D and R leadership. As of this writing, it’s unclear whether Chair Maloney will return.

ETHICS

OCE obstruction is not a crime, but it should be. Last week, the D.C. Circuit Court of Appeals reaffirmed a lower court decision that obstruction of Congress does not apply to the House OCE since the office is not within the scope of the obstruction statute. It’s time for Congress to change the statute to clearly define OCE obstruction as a criminal offense.

ODDS & ENDS

Capitol Police reported one arrest last week after an individual was arrested for having an active misdemeanor bench warrant. The department has disclosed just 14 arrests since the start of April.

What did we pass? Last Tuesday, the Senate saw some confusion on the floor after a senator was late to object to a UC request.

Inauguration planning moves forward. While acknowledging the challenge of the pandemic, the bicameral congressional panel tasked with planning the 2021 presidential inauguration named its chairperson, approved its budget, and set the location.

“What is a photocopier?” If you need a quick break, watch this hilarious reenactment of a court deposition from a 2010 Cuyahoga County court case centered around photocopies of public documents.

Scrubbing Wikipedia. Sen. Harris’ Wikipedia page is receiving a thorough scrubbing.

The Declaration of Independence. The British House of Commons has posted its copy, which was signed by John Hancock. Fair is fair: here is King George III’s response.

APPROPS CALENDAR

(If you’re interested in the calendar for all congressional committees, go here.)

MONDAY, JULY 6, 2020

STATE, FOREIGN OPERATIONS, AND RELATED PROGRAMS